Bower v. State, s. 69333

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation769 S.W.2d 887
Docket Number69335,69336,69334,Nos. 69333,s. 69333
PartiesLester Leroy BOWER, Jr., Appellant, v. The STATE of Texas, Appellee.
Decision Date25 January 1989

Page 887

769 S.W.2d 887
Lester Leroy BOWER, Jr., Appellant,
The STATE of Texas, Appellee.
Nos. 69333, 69334, 69335, 69336
Court of Criminal Appeals of Texas,
En Banc.
Jan. 25, 1989.
Rehearing Denied March 1, 1989.
Certiorari Denied July 3, 1989.

Page 889

E.X. Martin, John H. Hagler, Dallas, for appellant.

Stephen Davidchik, Dist. Atty., and Kellis W. Sampson, Asst. Dist. Atty., Sherman, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.


McCORMICK, Presiding Judge.

Appellant was convicted of four capital murders after a joint trial. Punishment in each case was assessed at death. Appellant has raised the same twelve points of error in each case and, for that reason, all four cases will be considered together.

Testimony at trial showed that one of the victims, Bobby Glen Tate, owned the B & B Ranch which was located near Sherman. Mr. Tate owned an ultra light aircraft which he stored in a hangar located on his property. Another ultra light aircraft owned by David Brady was also stored in the hangar. Evidence was presented to show that Tate had decided to put his ultra light up for sale and his friend, Philip Good, another one of the victims, who sold ultra lights was attempting to find a buyer for the aircraft. A day or two before the commission of the offense, Tate told his wife, Bobbi, that Philip Good had met someone the previous Wednesday who was interested in buying the ultra light.

On October 8, 1983, Mr. Tate went out to his ranch to work on a house he was building. According to Bobbi Tate, he was to return to their home in town around 4:30 p.m. About 7:30 p.m., when he failed to return, Bobbi and her stepson, Bobby Jr., went to the ranch. Outside of the hangar, they saw vehicles belonging to Tate, Philip Good and Ronald Mays. However, the hangar was locked and no lights were showing through the windows. Bobbi retrieved a key from her husband's pickup and unlocked the hangar door. Upon opening the door, they saw the body of Ronald Mays lying in a pool of blood. Bobbi and Bobby, Jr. went to the nearest phone and called police.

Marlene Good, the widow of Philip Good, reiterated a similar story. She testified that on September 30, 1983, someone called their home and spoke with Philip for ten or fifteen minutes regarding an advertisement Philip had placed in "Glider Rider" magazine regarding the sale of an ultra light. Philip told the caller that he had sold the ultra light advertised in the magazine, but he had another that he could sell. On the following Monday or Tuesday, the man called again. On Wednesday, October 5, Philip met the man at the Holiday Inn in Sherman and took him out to the B & B Ranch in order to show him Bob Tate's ultra light. When Philip returned at about 4:00 p.m., he told Marlene that he thought he had sold Bob Tate's ultra light and the man was going to pick up the plane on Saturday, October 8. On October 8, Marlene testified that she spent the day with Ronald Mays' wife. Philip spent the day helping Jerry Brown build an ultra light in Philip's hangar. At 3:30 p.m., Philip called her and told her he was going to meet the man at the hangar on the B & B Ranch at 4:00 p.m. At approximately 4:30 p.m., Ronald Mayes left to go the hangar at the ranch. When he had not returned by 6:30 p.m., Marlene went to the hangar to see

Page 890

what was happening. When she arrived, she too saw all the vehicles parked outside. The door to the hangar was locked and when she looked into the hangar windows, she could see that Bob Tate's ultra light was missing. Seeing that no one was around, she went home.

When investigators arrived on the scene, they discovered a grisly sight. Immediately inside the door of the hangar, they found the body of Ronald Mays. Underneath a pile of carpeting, investigators found the bodies of Philip Good, Bobby Tate, and Jerry Mack Brown. Good, Tate, and Brown had each been shot twice in the head. Mays had been shot once in the head, once in the neck, once in the right arm and once in the right side of the chest, and once in the back of the chest. All of the victims still had their wallets and their jewelry. Tate's ultra light which had been in the hangar earlier in the day was missing. A table situated against one wall of the hangar had a large spot of blood on it. Tests showed that this blood matched a sample of blood taken from Tate's body during an autopsy. This, plus the placement of the bodies underneath the carpet, led investigators to speculate that Tate had been shot while sitting at the table and then had been dragged over and placed with the bodies of Brown and Good. Investigators also found eleven spent .22 caliber shell casings which had been manufactured by Julio Fiocci. The scattered arrangement of the casings on the floor of the hangar indicated that the killer had used an automatic weapon rather than a revolver, since an automatic ejects the cartridges after each shot.

Dr. Charles Petty performed autopsies on the victims. According to Dr. Petty, three of the victims, Good, Brown and Tate all sustained two gunshot wounds to the head. In the cases of Good and Tate, both men had one contact wound. On the other hand, both of Brown's wounds were contact wounds. Mays sustained one contact wound to the head and four other wounds to the upper part of his body. Dr. Petty further testified that the presence of the contact wounds indicated that when the weapon was fired, the muzzle of the gun was placed directly against the victim's head. In addition, the gunpowder residue left on the victims indicated that in each instance the murder weapon was equipped with a silencer. Dr. Petty testified that he removed eleven bullets and fragments from the victims. All of the bullets appeared to be .22 caliber hollow point bullets.

Larry Fletcher, a firearms examiner with the Dallas County Institute of Forensic Sciences, testified that tests run on both the spent casings and the bullets indicated that the shots were fired from either an AR-7 .22 caliber rifle, a Ruger .22 caliber semi-automatic pistol, or a High Standard .22 caliber semi-automatic pistol. Markings on the bullets indicated that a silencer was used. In addition the ammunition was manufactured by Julio Fiocchi and was A-sonic (traveled at speeds below the speed of sound) and had hollow points. Fletcher testified that A-sonic ammunition had the characteristic of reducing the noise discharge normally heard upon the firing of a weapon. Fletcher also testified that Julio Fiocchi ammunition was unique in that in his nine years as a firearms examiner, he had never encountered it before. Due to the condition of the bullets, Fletcher could positively say that only two of the bullets were fired from the same weapon. One of these bullets was extracted from the body of Mr. Mays and one from the body of Mr. Tate.

Much of Fletcher's testimony was duplicated by the testimony of Paul Schrecker, a firearms examiner with the FBI. Schrecker testified that all eleven casings were fired from a single weapon, and the markings on the casings were all consistent with a Ruger firearm. His examination of the bullets indicated that at least seven of the bullets were fired by the same weapon. He agreed with Fletcher that a silencer was used. As far as the type of ammunition used, Schrecker testified that he had

Page 891

never encountered Fiocchi .22 caliber long rifle ammunition before this case.

Dennis Payne, appellant's supervisor at Thompson-Hayward Chemical Company in Dallas, testified that appellant had worked for the company in Colorado until he was laid off in February of 1983. Then in May of 1983, Payne had hired him for a sales position in Dallas. Although appellant's job performance in Colorado had been excellent, his performance in Dallas was poor.

While working in Dallas, appellant had been assigned a telephone credit card. A review of the record of the Thompson-Hayward Chemical phone bills indicated that on Friday, September 30, a call was made and charged to appellant's company credit card. This call was made to Philip Good's residence and the conversation lasted ten minutes. A direct dial call was made to Philip Good's residence again on Monday, October 3. This was a two minute call. Another call was placed on appellant's credit card to Philip Good's residence on Friday, October 7. This call lasted three minutes.

Another one of appellant's coworkers, Randal Cordial, testified that prior to the company sales meeting on January 3, 1984, appellant told him that he was building an ultra light airplane and lacked only the engine.

FBI Special Agent Nile Duke testified that after they traced the above-mentioned phone calls to the Thompson-Hayward Chemical Company, he began interviewing all the employees of the company in hopes of finding out who had placed the calls. After learning that appellant had told Special Agent Jim Knight that he had telephoned Philip Good, he scheduled an interview with appellant on January 11, 1984 at the company office. During the two hour interview, appellant told Duke that he had seen an advertisement in Glider Rider Magazine regarding an ultra light aircraft that Good had for sale. Appellant admitted calling the Good residence twice. According to appellant, during the first call which he said was the shortest, he had spoken only with Mrs. Good who told him that Mr. Good was not at home. He later called back and spoke with Mr. Good who informed him that the ultra light had been sold. Appellant told Duke that he had made only two calls and none of the calls had been placed on company credit cards. Appellant also told Duke that he had never made an appointment to see Good and had only passed through Sherman on his way to Tulsa or Gainesville. When asked his whereabouts on the day of the murders, appellant told Duke that he could not account for his whereabouts on October 8, although he did remember that he was sick with a virus on Monday,...

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